PART I. INTRODUCTORY REMARKS -- MY OPPOSITION TO THE
COURT'S DECISION TO RENDER AN OPINION IN RESPONSE TO THE REQUEST UNDER GENERAL ASSEMBLY
RESOLUTION 49/75K IN THIS CASE

1

(1)

The Inadequacy of the Question put by the General Assembly in
the Resolution as the Request for Advisory Opinion

2-5

(2)

The Lack of a Meaningful Consensus of the Member States of the
United Nations on the Request Drafted without any Adequate Statement of Reasoning

Table
I

6-14

PART II. ONE ASPECT OF
NUCLEAR DISARMAMENT -- THE UNSUCCESSFUL EFFORTS OVER A LONG PERIOD TO BRING ABOUT A
CONVENTION "PROHIBITING THE USE OR THREAT OF USE OF NUCLEAR WEAPONS UNDER ANY
CIRCUMSTANCES" AS AN IMMEDIATE BACKGROUND TO THE REQUEST TO THE COURT

15-25

(1)

Declaration for the Non-use or the Prohibition of Nuclear
Weapons

Table II

15-19

(2)

The 1982-1995 Resolutions on the Convention on the Prohibition
of the Use of Nuclear Weapons

Table III

20-25

PART III. ANOTHER ASPECT OF
NUCLEAR DISARMAMENT -- NUCLEAR DISARMAMENT IN THE PERIOD OF THE COLD WAR AND THE ROAD TO
THE CONCLUSION OF THE
NON-PROLIFERATION TREATY

26-42

(1)

The Nuclear Arms Race and the Control of Nuclear Weapons in
the period of the Cold War; the Emergence of the Non-Proliferation Treaty

26-33

(2)

Perpetuation of the NPT régime

Table IV

34-41

(3)

Significance of the NPT régime in the period of the still
valid doctrine of nuclear deterrence

Table V

42

PART IV. CONCLUDING REMARKS

(1)

Re-Examination of the General Assembly's Request for the
Court's

Advisory Opinion

43-46

(2)

Role of the Advisory Function and the Discretion of the Court
to Decline to Render an Advisory Opinion

47-51

(3)

Conclusions

52-54

PART V. SUPPLEMENTARY
OBSERVATIONS ON MY POSITION AS REGARDS PARAGRAPH 2 OF THE OPERATIVE PART OF THE PRESENT
ADVISORY OPINION

55

_________

I. INTRODUCTORY REMARKS

MY OPPOSITION TO THE COURT'S
DECISION TO RENDER AN
OPINION IN RESPONSE TO THE REQUEST UNDER
GENERAL ASSEMBLY RESOLUTION 49/75K
IN THIS CASE

1. As the only Judge who voted against paragraph (1) of the operative part of the
Court's Opinion, I would like to state my firm conviction that the Court, for reasons of
judicial propriety and economy, should have exercised its discretionary power to refrain
from rendering an opinion in response to the request for advisory opinion submitted by the
United Nations General Assembly under its resolution 49/75K of 15 December 1994. I am
sorry to have to say that the conclusions the Court has now reached do not appear to me to
constitute substantive or substantial answers to the questions that the General Assembly
wanted to raise by means of its resolution and occasion doubts about the credibility of
the Court.

(1) The Inadequacy of the Question put by the General Assembly in the
Resolution as the Request for Advisory Opinion

2. (The request laid down in resolution 49/75K) The question put to the Court by
the General Assembly, under resolution 49/75K within the framework of the agenda item:
"General and complete disarmament", reads strangely. It is worded as follows:

"Is the threat or use of nuclear weapons in any circumstance permitted under
international law?"

The Court's Opinion points out the difference between the English and the French texts
of the Request and states that "[t]he Court finds it unnecessary to pronounce on the
possible divergences" (Court's Opinion, para. 20). We should, however, note that the
resolution which originated in draft resolution A/C.1/49/L.36 (original: English),
prepared and introduced by Indonesia (on behalf of the States Members of the United
Nations that are members of the Movement of Non-Aligned Countries), was originally drafted
in English and that, in the First Committee at the 49th Session (1994) which took up this
draft resolution, the content of this original English text was not questioned by any
delegate. Moreover, it would seem that the francophone delegates raised no question about
the text of the French translation, as far as the verbatim records indicate. I shall
therefore proceed with my analysis based on the English text.

3. (The request was presented to the Court, not so much in order to ascertain its
opinion as to seek the endorsement of an alleged legal axiom) When putting this
question to the Court, the General Assembly - or those States which took the initiative in
drafting the Request - clearly never expected that it would give an answer in the affirmative
stating that: "Yes, the threat or use of nuclear weapons is permitted
under international law in any circumstance [or, in all circumstances]". If this is
true, it follows that, in fact, the General Assembly only expected the Court to
state that: "No, the threat or use of nuclear weapons is not permitted
under international law in any circumstance". The General Assembly, by asking
the question that it did, wished to obtain nothing more than the Court's endorsement
of the latter conclusion.

Since the Court was simply asked in this instance to give an opinion endorsing what is,
in the view of the General Assembly, a legal axiom to the effect that "the threat or
use of nuclear weapons is not permitted under international law in any circumstance",
I wonder if the Request really does fall within the category of a request for advisory
opinion within the meaning of Article 96(1) of the Charter of the United Nations. In the
history of the advisory function of the Court, a simple endorsement or approval of what
either the General Assembly or the Security Council believed to be a correct legal axiom
has never been asked for in the form of a request for advisory opinion.

The drafting of the question put by the General Assembly seems to have been extremely
singular. The Court has, however, reformulated the question to read, as indicated:
"[the] real objective [of the question] is clear: to determine the legality or
illegality of the threat or use of nuclear weapons" (Court's Opinion, para.
20) (emphasis added) and, furthermore, has implicitly reformulated the question to read:
if nuclear weapons are not totally prohibited, under what circumstances is the threat or
use of nuclear weapons considered to be lawful or permissible?

4. (The lack of clarity as regards the concept of a "threat" in connection
with nuclear weapons) I would like further to point out that the words "the
threat of nuclear weapons" are not clearly defined in the Request and may not have
been understood in an unequivocal manner by the member States which supported the
resolution. An important point seems to be overlooked in the Request, namely a possibility
that nuclear weapons may well be considered to constitute a "threat" merely by
being in a State's possession or being under production by a State, considering that the
phrase "threat or use of nuclear weapons" (emphasis added) was first used
in the Request while the phrase "the use or threat of use of nuclear
weapons" (emphasis added) had long been employed in the United Nations resolutions.
In my view it was quite possible, at the time of the Request, for some member States of
the United Nations to consider that the actual "possession" or
"production" of nuclear weapons constituted a "threat". In other
words, the Request might have been prepared by some States who strongly upheld the
straightforward notion of the illegality of nuclear weapons as whole.

5. (Political history of the Request) What actually gave rise to this inaptly
phrased and inadequately understood Request? I shall engage in a detailed analysis of this
question and would like to stress one point, namely that, in spite of the Court's view
that "regard [should] not [be had] to the origins or to the political history
of the request, or to the distribution of votes in respect of the adopted resolution"
(Court's Opinion, para. 16) (emphasis added), it appears to me pertinent and essential to
examine why and under what circumstances the present Request was submitted to the Court
under resolution 49/75K in 1994 and by whom - within the Organization of the United
Nations or outside of it - this Request was initiated. It is for this reason that I will
engage in an analysis of the history of the Request and the way in which some relevant
decisions were taken by the General Assembly.

(2) The Lack of a Meaningful Consensus of the Member States of the United
Nations on the Request Drafted without any Adequate Statement of Reasoning

6. (Preliminary attempt in 1993) It was not until 1994 that the General Assembly
raised the question of what was the existing international law concerning nuclear
weapons generally, despite the fact that the discovery, development and possession of
nuclear weapons, as well as the threat of their use, had for the previous fifty years,
since 1945, consistently been a matter of profound political concern to the international
community.

However, prior to the adoption of resolution 49/75K by the General Assembly at its 49th
Session (1994), the idea of requesting the Court's opinion on the existing international
law concerning nuclear weapons had been suggested at the 48th Session (1993) under the
agenda item: "General and complete disarmament" (an item dating back to the 26th
Session (1971) of the General Assembly), when, in the First Committee, Indonesia
introduced on 9 November 1993 a draft resolution on behalf of the Movement of Non-Aligned
Countries: "Request for an advisory opinion from the International Court of Justice
on the legality of the threat or use of nuclear weapons" (A/C.1/48/L.25).

In fact a request for an advisory opinion of the Court had already been made by the WHO
(WHA46.60) just a few months previously - a fact that was mentioned in the preambular
paragraph of that Indonesian draft resolution.
On 19 November 1993 the sponsors of that draft resolution decided not to press for action
on it, but without giving any explanation for that decision. A draft resolution with a
similar content was, however, once again brought before the General Assembly in the
following year at its 49th Session (1994).

7. (The movement of non-aligned countries) Relevant to this was one of the
decisions made at the Eleventh Ministerial Conference of the Movement of Non-Aligned
Countries which was convened in Cairo in May/June 1994. The Conference covered an
extremely wide range of subjects and its Final Document on "Disarmament and
international security" read:

"69. The Ministers decided to retable and put to the vote the resolution
seeking an advisory opinion from the International Court of Justice on the legality of the
use and threat of use of nuclear weapons during the forty-ninth Session of the General
Assembly." (A/49/287; S/1994/894.) (Emphasis added.)

The circumstances under which the Conference reached this particular decision were not
clear from the documentation available.

The same decision of the non-aligned countries was repeated by the meeting of the
Ministers of Foreign Affairs and Heads of Delegation of the Movement of Non-Aligned
Countries to the 49th session (1994) of the General Assembly held at the United Nations
Headquarters on 5 October 1994 (A/49/532; S/1994/1179: para. 34).

8. (Non-governmental organization) I would also point to another factor. The
idea behind the resolution whereby the General Assembly (and also the WHO) requested
advisory opinions, had previously been advanced by a handful of non-governmental
organizations (NGOs) which initiated a campaign for the total prohibition of
nuclear weapons but failed to persuade the States' delegations in the forum of the General
Assembly, which has done no more during a period of more than ten years than to pass
repeated resolutions suggesting a convention on the prohibition of the use or threat of
use of nuclear weapons (cf. paras. 21-24, below). Some NGOs seem to have tried to
compensate for the vainness of their efforts by attempting to get the principal judicial
organ of the United Nations to determine the absolute illegality of nuclear
weapons, in a bid to persuade the member States of the United Nations to press for their
immediate and complete prohibition in the political forum.

A statement made by an observer from the International Physicians for the Prevention of
Nuclear War at the World Health Assembly in 1993 appears to shed light on what was behind
the movement towards the attempt to get the International Court of Justice to render an
advisory opinion on the matter in response to a request from the World Health Organization
if not from the United Nations General Assembly. The observer stated that "WHO would
be right to seek an opinion on the matter from the International Court of Justice".

An observer from the World Federation of Public Health Associations informed the World
Health Assembly that

"it [itself] had unanimously adopted a resolution on nuclear weapons and public
health which, inter alia, urged the World Health Assembly to request an advisory opinion
from the International Court of Justice on the legal status of the use of nuclear weapons,
so as to remove the cloud of legal doubt under which the nuclear powers continued their
involvement with such weapons, as well as to provide the legal basis for the gradual
creation of a nuclear-free world."

This matter is referred to in my Separate Opinion appended to the Court's Opinion in
response to the request of the WHO.

Another document of interest is an essay in a newsletter of the World Government of
World Citizens, a part of which reads as follows:

"The threat to humanity's existence posed by nuclear weapons has encouraged humans
the world over to consider new strategies for influencing their governments. One of these
initiatives - the movement to 'illegalize' nuclear weapons - may increase
participation in new governing structures being created to address global problems. The
World Court Project is thus taking its place in the forefront of the antinuclear movement.

To crystallize a united front against nuclear weaponry, several nongovernmental
organizations (NGOs) ... have established a World Court Project. These NGOs have successfully
lobbied the 'non-aligned' members of the United Nations General Assembly and the
U.N.'s World Health Organization (WHO) to establish, according to customary international
law, the illegality of nuclear weapons." (World Citizen News, Vol. IX,
No. 6, Dec./Jan. 1996.) (Emphasis added.)

This gives the impression that the Request for an advisory opinion which was made by
the General Assembly in 1994 originated in ideas developed by some NGOs.

9. (The Indonesian draft resolution in the 49th Session) In the First Committee
at the 49th Session (1994), some States' representatives made various kinds of reference,
in the general debate on all disarmament and international security agenda items that was
held in the period 17-20 October 1994, to the earlier decisions of the Non-Aligned
Movement as referred to paragraph 7 above.

While Benin was opposed to

"any initiative which could be counter-productive and which might necessitate a
legal ruling from the International Court of Justice on questions which are essentially
political in nature, such of those of the legality of the use or a threat of the use of
nuclear weapons" (A/C.1/49/PV.3, p. 22),

the United Arab Emirates, Zimbabwe, Namibia, Tanzania and Malaysia were in favour of
such an initiative (A/C.1/49/PV.5-7).

In that situation, Indonesia, on behalf of the members of the Movement of Non-Aligned
Countries, introduced on 9 November 1994 a draft resolution on "Request for an
advisory opinion from the International Court of Justice on the legality of the threat or
use of nuclear weapons" (A/C.1/49/L.36) to the First Committee (A/C.1/49/PV.15, p.
7). This draft resolution, which proposed that the General Assembly should

"[d]ecide[s], pursuant to Article 96, paragraph 1, of the Charter, to
request the International Court of Justice urgently to render its advisory opinion on the
following question: 'Is the threat or use of nuclear weapons in any circumstance permitted
under international law?'"

and which was practically identical to the 1993 text (A/C.1/48/L.25) proposed by
Indonesia (which however did not press for action at the 48th Session (1993)) (see para.
6, above), became the subject of discussion at the First Committee on 17 and 18 November
1994.

In fact, the text of this question put to the Court, which was originally a part of the
Indonesian draft, seems simply to have been copied, though not in exactly the same terms,
from the General Assembly resolutions on a "Convention on the prohibition of nuclear
weapons and prevention of nuclear war" (which have been adopted as a matter of
routine and without being subjected to any substantive discussions in every session of the
General Assembly since 1982) with a accompanying draft convention reading:

"The States Parties to this Convention solemnly undertake not to use or threaten
to use nuclear weapons under any circumstances." (Article 1.) (Emphasis added.)

(See, e.g., General Assembly resolution 48/76B and Table III, 1-12).

10. (For and against the Indonesian draft) While Malaysia gave its support to
this draft resolution by stating that:

"In the present post-cold-war climate, the legal opinion of the International Court
of Justice could make an important contribution to the realization of a
nuclear-weapons-free world. It could not replace nuclear disarmament initiatives, but it
could provide the legal and moral parameters within which such initiatives could
succeed" (A/C.1/49/PV.22, p. 4) (emphasis added),

Senegal, Chile and Benin asked for the postponement of the discussions in order to have
more time for consultations before voting (ibid., pp. 4-6).

The United States, asserting that

"it is even harder to fathom the purpose of a draft resolution requesting such an
opinion from the International Court of Justice this year, when further steps to control
and eliminate nuclear weapons are being taken, negotiated or contemplated",

urged its colleagues to abstain or to vote against this draft resolution (ibid.,
p. 6).

Morocco appealed that no action should be taken on the draft resolution since "the
consensus on this subject among the Movement of Non-Aligned Countries ha[d] been seriously
eroded" (A/C.1/49/PV.24, p. 5). Germany, representing the European Union, was opposed
to the draft resolution for the reason that

"[this] resolution would do nothing to help the ongoing consideration of the
questions by the International Court of Justice and might adversely affect the standing of
both the First Committee and the Court itself. It could also have wider adverse
implications on non-proliferation goals which we all share"

and regretted having failed to convince its sponsors to withdraw it (ibid., p.
6). Hungary immediately echoed the same position.

After Indonesia and Colombia had expressed their opposition to the motion submitted by
Morocco for no action on the resolution, this motion was put to the vote and rejected by a
recorded vote of 45 in favour, 67 against with 15 abstentions (ibid., p. 7).

Prior to the voting on the Indonesian draft resolution, Russia took the view that

"the question of the advisability of the use of nuclear weapons is above all a
political, not a legal problem ... Since the Charter of the United Nations and the
statutes of the International Court of Justice came into force, nuclear weapons have been
considered in States' doctrines not so much as a means of warfare but as a deterrent to
war, especially global conflicts. They are therefore different from other weapons, in that
they have a political function in the world today" (ibid.).

France stated that

"Trying to utilize for partisan purposes so respected an international institution
as the International Court of Justice entails a very serious responsibility: that of
putting at risk the credibility of the Court by leading it away from its mission. Indeed,
who can seriously believe that the question posed is a legal one? It is, as we all know, a
purely political issue ... Need I recall that, for the first time since the invention of
nuclear weapons, the entire international community is engaged in multilateral
negotiations on a universal and verifiable treaty on a comprehensive nuclear-test ban, and
that important progress on this issue has already been achieved at Geneva?" (ibid.,
p. 8)

The United Kingdom stated that:

"the draft resolution ... risks being seen as a deliberate attempt to exert
political pressure over the Court to prejudice its response ... Secondly, this draft
resolution can do nothing to further the various positive diplomatic efforts under way in
the field of nuclear disarmament, arms control and non-proliferation, notably on a
comprehensive test-ban treaty ... Thirdly, this draft resolution can do nothing to further
global peace and security ... Fourthly, this draft resolution risks serving the interests
of those who wish to distract attention from the destabilizing accumulation of
conventional arms and from clandestine programmes aimed at acquiring weapons of mass
destruction and developing delivery systems" (ibid.).

Germany (on behalf of the European Union) again pointed out that the European Union and
its own country could not support the draft resolution (ibid.). Malta expressed its
opposition and stated that

"[w]ithin the Non-Aligned Movement, to which we belong, we raised the question of
withdrawal of the draft resolution. Unfortunately, our request was not acted upon by the
Movement" (ibid.).

The United Arab Emirates stated that it would not participate in the voting (ibid.,
p. 9), and Benin once again expressed its support of the motion presented by Morocco (ibid.).

On the other hand, Iran and Mexico gave support to the draft resolution (ibid.).

11. (Adoption of the Indonesian draft) The draft resolution proposed by Indonesia (on
behalf of the Movement of Non-Aligned Countries) was adopted by the First Committee on 7
December 1994, as a result of a recorded vote of 77 votes in favour, 33 against with 21
abstentions (ibid., p. 13).

After the voting, Canada, which had abstained from voting, stated that

"Canada is ... concerned that the process of seeking an advisory opinion of the
International Court could have a negative impact on certain of these ongoing negotiations
by diverting attention from them" (ibid.)

Australia, which also abstained from the voting, explained that

"we are concerned that seeking an advisory opinion from the International Court of
Justice on this issue could have an adverse rather than a positive effect on efforts to
advance the process of nuclear disarmament. On the whole, we believe the question is
unsuitable for adjudication. It certainly goes beyond a definable field of judicial
inquiry and enters into the wider realms of policy and security doctrines of States."
(ibid., p. 14.)

Sweden, which had also abstained from the voting, expressed the opinion that "the
use of nuclear weapons would not comply with international law" and desired that
"the legal situation be clarified as soon as possible by the Court" while
stating, however, that that view was simply based on a report of the Swedish Parliament (ibid.).

To continue the explanation of votes, Chile stated that it had voted in favour of the
draft resolution, as it felt that it should be guided by the majority orientation of the
Movement of Non-Aligned Countries (A/C.1/49/PV.25, p. 1), and Japan gave an explanation of
its abstention from the voting, saying that

"in the present international situation, pursuing the question of the legality of
the use of nuclear weapons may simply result in confrontation between countries. Japan
therefore believes that it is more appropriate to steadily promote realistic and specific
disarmament measures" (ibid.).

China declared that it had not participated in the vote on the draft resolution, hoping
that

"in the further promotion of nuclear disarmament and the prevention of nuclear war
the General Assembly, the First Committee, the Disarmament Commission and the Conference
on Disarmament, which have already played an important role, will continue to do so"
(ibid., p. 4).

12. (My general views on the discussions in the First Committee) I would like to
point out that, in spite of the support for the draft resolution proposed by Indonesia,
hardly any explanation was given by any delegate backing the resolution as to why the lex
lata concerning the "threat or use of nuclear weapons" should, as of 1994,
require clarification by the International Court of Justice. No positive argument in
support of the Request was heard from any delegate who favoured the Indonesian proposal.
Rather, the statements made in the First Committee by a number of those delegates appear
for the most part to have been no more than appeals for the elimination of nuclear
weapons.

In addition, the substance of the question or the wording of that question to be asked
of the Court, i.e., "[i]s the threat or use of nuclear weapons in any circumstance
permitted under international law?" was scarcely considered by any of the member
States in the General Assembly. The questions of what would constitute the
"threat" of nuclear weapons, as opposed to the "threat of use" (a
phrase employed in many United Nations resolutions) and whether the "threat"
would imply the "possession" or "production" of nuclear weapons,
together with the question of what was meant by "any circumstance", were not
raised by any delegate in the First Committee. However, it remains a fact that the
Indonesian draft resolution was adopted by a majority in the First Committee.

13. (Plenary meeting) The draft resolution adopted by the First Committee on 7
December 1994 by 77 votes in favour, 33 against with 21 abstentions (as stated in para.
11, above) was taken up at the Plenary Meeting on 15 December 1994 and was adopted by a
recorded vote of 78 in favour, 43 against with 38 abstentions as resolution 49/75K (Table
I). France, Russia, the United Kingdom and the United States were among the opposing
States, and China did not participate in the voting. Except for New Zealand and San
Marino, there were no other countries in favour of the resolution in the category of West
European and Other countries.

14. (Conclusion) I have thus demonstrated that the "question", which
itself appears to me to be inadequate as a request for an advisory opinion of the Court
under Article 96(1) of the Charter of the United Nations (as explained in para. 3, above),
was drafted without any adequate statement of reasoning in support of any real need to ask
the Court to rule on the "legality or illegality" of the "threat or
use" (if not the "use or threat of use") of nuclear weapons or, in more
general terms, of nuclear weapons themselves. It is certain that the Request did not
reflect a meaningful consensus of the member States of the United Nations or even of its
Non-Aligned Members.

TABLE I
[Note: the nuclear-weapon States under the NPT
are underlined; "R" denotes recorded vote]

Voting on the 1994 Resolution requesting the
Court's advisory opinion

The 49th Session (1994)

A/C.1/49/L.36: Sponsored by: Indonesia (on behalf of the States Members of the United
Nations that are members of the Movement of Non-Aligned Countries) A/RES/49/75K: adopted
on 15 December 1994 by R78-43-38

THE UNSUCCESSFUL EFFORTS OVER A LONG PERIOD TO
BRING ABOUT A CONVENTION "PROHIBITING THE
USE OR THREAT OF USE OF NUCLEAR WEAPONS UNDER
ANY CIRCUMSTANCES" AS AN IMMEDIATE
BACKGROUND TO THE REQUEST TO THE COURT

(1) Declaration on the Non-use or the Prohibition of Nuclear Weapons

15. (Immediate background of the Request) While the General Assembly resolution
requesting an advisory opinion of the Court was prepared by Indonesia on behalf of the
Non-Aligned Movement in 1994, as mentioned in paragraph 9 above, the following
circumstances are noted as its immediate background.

The prohibition of the use of nuclear weapons had been an earnest desire of a group of
some member States of the United Nations and had been presented to the General Assembly
throughout a long period extending over several decades. A review of the development of
the idea of that prohibition in the United Nations General Assembly may reveal the
background to resolution 49/75K and is extremely useful when one evaluates that
resolution, despite the Court's opinion, to a part of which I have already referred in
paragraph 5 above, which states:

"once the Assembly has asked, by adopting a resolution, for an advisory opinion on
a legal question, the Court, in determining whether there are any compelling reasons for
it to refuse to give such an opinion, will not have regard to the origins or to the
political history of the request, or to the distribution of votes in respect of the
adopted resolution" (Court's Opinion, para. 16).

16. (The 1961 Declaration on the prohibition of the use of nuclear weapons) The
General Assembly in its 16th Session (1961), when passing resolution 1653 (XVI) entitled
"Declaration on the prohibition of the use of nuclear and thermo-nuclear
weapons", declared that

"the use of nuclear and thermo-nuclear weapons is ... a direct violation of the
Charter of the United Nations; ... is contrary to the rules of international law and to
the laws of humanity; [and] ... is a war directed ... against mankind in general"

and that

"[a]ny State using nuclear and thermo-nuclear weapons is to be considered as
violating the Charter of the United Nations, as acting contrary to the laws of humanity
and as committing a crime against mankind and civilization."

This resolution originated from the draft resolution (A/C.1/L.292), sponsored by some
12 States, and introduced by Ethiopia. After it had been subjected to extensive
discussion, both for and against, in the First Committee, the Plenary Meeting adopted the
part comprising the above-mentioned declaration by a recorded vote of 56 in favour, 19
against, with 26 abstentions. The Resolution as a whole, itself comprising the
declaration, was adopted by a recorded vote of 55 in favour, 20 against, with 26
abstentions on 24 November 1961 (Table II, 1).

The resolution, however, did nothing more than request the Secretary-General of the
United Nations to consult member States in order to ascertain the possibility of convening
a special conference for signing a convention on the prohibition of the use of nuclear
weapons.

17. (The first special disarmament session) Nearly two decades elapsed in which
no practical action was taken to implement the 1961 resolution. Being "[a]larmed by
the threat to the very survival of mankind posed by the existence of nuclear weapons and
the continuing arms race," the General Assembly held in May/June 1978 its first
session devoted to disarmament, that is, the Tenth Special Session (GAOR, 10th Sp.
Sess., suppl. 4; A/S-10/2). The General Assembly at this first special disarmament session
adopted a "Final Document" covering nearly 130 paragraphs including a programme
of action, in which it was stated that "[a] convention should be concluded
prohibiting the development, production, stockpiling and use of radiological weapons"
(ibid., para. 76). Among a number of proposals put forth at this special session
for consideration, there was a draft resolution submitted by Ethiopia and India:
"Non-use of nuclear weapons and prevention of nuclear war", the intention of
which was to have the General Assembly declare that:

"(a) The use of nuclear weapons will be a violation of the Charter of the
United Nations and a crime against humanity;

In that special session neither this nor any other particular resolution was adopted.

18. (The 1978 resolution on "Non-use of nuclear weapons and prevention of
nuclear war") Ever since the 33rd Session (1978), that is, a regular session
which was held a few months later, the General Assembly has included on its agenda an item
entitled: "Review of the implementation of the recommendations and decisions adopted
by the General Assembly at its tenth special session" (the item which has appeared at
every session of the General Assembly down to the present day).

A draft resolution (A/C.1/33/L.2), submitted by some 34 States and introduced by India,
entitled "Non-use of nuclear weapons and prevention of nuclear war" (which was
practically identical to the one submitted by Ethiopia and India at the first special
disarmament session, as mentioned in para. 17, above) was adopted at the Plenary Meeting
on 14 December 1978 by a recorded vote of 103 in favour, 18 against with 18 abstentions as
resolution 33/71B (Table II, 2).

Under this 1978 resolution, which followed the spirit of the 1961 Declaration, the
General Assembly declared that

"[t]he use of nuclear weapons will be a violation of the Charter of the
United Nations and a crime against humanity [and] should therefore be prohibited,
pending nuclear disarmament" (emphasis added)

and requested all States to submit proposals concerning the non-use of nuclear
weapons and avoidance of nuclear war in order that the question of an international
convention on the subject might be discussed at a subsequent session.

It may be noted that the idea of the prohibition of the use of nuclear weapons
was introduced here for the first time as a part of the declaration in a General Assembly
resolution.

19. (The 1980 and 1981 resolutions) Thereafter, and at the 35th (1980) and the
36th (1981) sessions, practically identical draft resolutions, including declarations
which were similar to the 1978 resolution, prepared by almost the same States (between 20
and 30 in number) were introduced by India and adopted with a similar vote, almost the
same countries being against each time and almost the same countries abstaining each time
(Table II, 3 and 4).

It should be pointed out, however, that the expression reading the "threat of
use" of nuclear weapons and the idea that not only the "use" but also, in
parallel, the "threat of use" of nuclear weapons should be prohibited was
introduced only in 1980 for the first time. No explanation was given by the sponsoring
State nor did any discussion take place in the General Assembly meetings on what would
constitute the "threat of use" of nuclear weapons or, more particularly, on
whether the "possession" or the "production" of nuclear weapons would
constitute a "threat of use".

TABLE II
[Note: the nuclear-weapon States under the NPT
are underlined; "R" denotes recorded vote]

Voting on the UN Declarations relating
to the use of nuclear weapons

1. The 1961 "Declaration on the prohibition of the use of nuclear weapons and
thermo-nuclear weapons"

(2) The 1982-1995 Resolutions on the Convention on the Prohibition of the
Use of Nuclear Weapons

20. (The second special disarmament session) The General Assembly, which was not
satisfied with the development of disarmament so far, held, in June/July 1982, its second
session devoted to disarmament, that is, the Twelfth Special Session, and approved the
"Report of its Ad Hoc Committee" (GAOR, 12th Sp. Sess., Suppl. 6;
A/S-12/32) as the "Concluding Document" of that session in which reference was
made to a draft resolution proposed by India (among various draft resolutions put forward
in that session). The Indian draft read:

Decides
to adopt an international convention ..., prohibiting the use or threat of use of
nuclear weapons under any circumstances, pending nuclear disarmament."
(A/S-12/32, para. 20; A/S-12/AC.1/L.4.) (Penultimate and final emphasis added.)

The draft of the "Convention on the Prohibition of the Use of Nuclear
Weapons" was annexed to this draft resolution which read:

Article 1. The States Parties to this Convention solemnly undertake not to use or
threaten to use nuclear weapons under any circumstances." (Emphasis added.)

In fact this draft resolution with the annexed draft of the Convention originally
submitted by India at this special disarmament session was subsequently put forward by
India during each regular session of the General Assembly from 1982 to 1995, inclusive, as
explained below.

21. (The 1982 resolution on "Convention on the prohibition of the use of
nuclear weapons") The 37th Session (1982) of the General Assembly which met a few
months after the second special disarmament session, that is, in the fall of 1982,
included on its agenda item: "Review and implementation of the Concluding Document of
the Twelfth Special Session of the General Assembly"[This agenda item
remains until the present day at every session of the General Assembly but with the
addition of sub-item "Convention on the prohibition of the use of nuclear weapons:
Report of the Committee on Disarmament" from the thirty-eighth session until the
forty-second session, inclusive. From the forty-third session the sub-item simply
referred to the Convention on the prohibition of the use of nuclear weapons without making
any mention of the Report of the Committee on Disarmament.]. Some twenty States presented
a draft resolution (A/C.1/37/L.4), which was introduced by India in the First Committee.
This draft resolution, after some minor revisions by the sponsoring States, was adopted by
the Plenary Meeting on 13 December 1982 as resolution 37/100C: "Convention on the
prohibition of the use of nuclear weapons" as a result of a recorded vote of 117 in
favour, 17 against with 8 abstentions (Table III, 1).

The resolution read:

"The General Assembly,

Reaffirming the declaration that the use of nuclear weapons would be a
violation of the Charter of the United Nations and a crime against humanity ...

1. Requests the Committee on Disarmament to undertake, on a priority basis,
negotiations with a view to achieving agreement on an international convention prohibiting
the use or threat of use of nuclear weapons under any circumstances, taking as a
basis the text of the annexed draft Convention ..." (third and final emphasis added).

The draft Convention, which had been included in the Indian draft resolution submitted
to the second special disarmament session (as quoted in paragraph 20 above) was annexed to
this resolution.

The resolution certainly originated in the Indian draft proposal at the second special
disarmament session of that year but, unlike that original Indian proposal, which would
have led the General Assembly itself to decide to adopt an international convention,
it requested that negotiations should be undertaken in the Committee on Disarmament
(known presently as the Conference on Disarmament) in Geneva with a view to achieving
agreement on an international convention "prohibiting the use or threat of use of
nuclear weapons under any circumstances".

22. (The phrase "the use or threat of use of nuclear weapons under any
circumstances") The phrase "the use or threat of use of nuclear
weapons under any circumstances" (emphasis added) was first used in a General
Assembly resolution in 1982. However, there was no discussion of the phrase in the General
Assembly. Furthermore, that phrase was initially used in the context of a possible
prohibition in a future international convention.

It is important to note that the wording of the question in the Request presented to
the Court that reads: "Is the threat or use of nuclear weapons in any
circumstance permitted under international law?" (emphasis added), which seems to
have originated in the phrase used in a twelve-year old (1982) General Assembly
resolution, is in fact different in that the question in the 1994 Request singles out the
"threat" of nuclear weapons and leaves open the possibility that this
"threat" - not the "threat of use"- might be interpreted as meaning
the "possession" or the "production" of those weapons. It is even more
important to note that the phrase "threat of use" in the 1982 resolution was
used in a quite different context, as I explained above, namely, with respect to a
convention to be agreed upon in future.

23. (From 1983 to 1995) In the 38th Session (1983), the General Assembly,
"noting with regret that the Committee on Disarmament, during its session in 1983,
was not able to undertake [such] negotiations", reiterated its request to the
Conference on Disarmament [From 7 February 1984, the date of commencement of its annual
session, the Committee on Disarmament was to be known as the Conference on Disarmament.]
in Geneva

"to commence negotiations, as a matter of priority, in order to achieve agreement
on an international convention prohibiting the use or threat of use of nuclear
weapons under any circumstances, taking as a basis the text of [the annexed draft
Convention which was identical to that of 1982]" [The wording "as a matter of
policy" was dropped since the forty-ninth session (1994) and the word
"possible" was added so that it read "as a possible basis" since the
forty-eight session (1993).] (emphasis added).

In every session of the General Assembly since 1982 until 1995 (37th-50th Sessions),
under the same agenda item as referred to in paragraph 21 above, practically the same
States presented practically identical draft resolutions with the attached draft
convention which did not change at all during a fourteen-year period (which draft
resolutions were invariably introduced by India) and these draft resolutions were adopted
as a result of practically the same voting (Table III, 1-14). In fact, while the number of
sponsoring States remained almost steady, the number of States which took a negative
position on the resolution increased.

24. (Repetition of resolutions with the same content) The request of the
General Assembly in New York that the Conference on Disarmament in Geneva should undertake
negotiations and the General Assembly's regret that the Conference had failed to do
so during the previous year, were repeated at every subsequent session down to the 50th
Session (1995) in practically the same wording [In the resolutions of the forty-eighth and
forty-ninth sessions, the preambular part, as quoted in the text, was simplified to read
"was not able to undertake negotiations on this subject".]. The repetition of
the same resolutions during this period of over fourteen sessions appears to indicate that
the Conference on Disarmament (formerly the Committee on Disarmament) was never able to or
never attempted to negotiate to achieve agreement on an international convention
"prohibiting the use or threat of use of nuclear weapons under any
circumstances". In other words the cumulation of resolutions have not produced any
noticeable effect.

25. (Motive behind the Request for advisory opinion) It appears that the 1994
Request for advisory opinion, particularly in view of the drafting of its text referring
to "the threat or use of nuclear weapons in any circumstance" (emphasis
added), was prompted by a group of practically the same States which, since 1982, had been
sponsoring the resolutions calling for the conclusion of "an international convention
prohibiting the use or threat of use of nuclear weapons under any
circumstances" (emphasis added) (resolutions referred to in Table III, 1-14), without
any meaningful discussion on what was meant by the expressions "threat or use of
nuclear weapons" or "any circumstances". I consider it likely that the
"threat" of nuclear weapons would, in the view of some of those States which
sponsored the resolution, comprehend the "production" and the
"possession" of nuclear weapons.

Now the Request, by purporting to ask whether "the threat or use of nuclear
weapons [is] in any circumstance permitted under international law" (emphasis
added), was in fact attempting to secure the Court's endorsement of an alleged legal axiom
- the threat (which may imply the possession or the production) or use of
nuclear weapons is not permitted under international law in any circumstance
- in order to produce a breakthrough, thus laterally achieving agreement on the Convention
which would establish the illegality of nuclear weapons themselves. It is to me quite
clear that this Request was prepared and adopted with highly political motives which do
not correspond to any genuine legal mandate of a judicial institution. This certainly does
not accord with the role that the advisory function of the Court has, in essence, to play
under Article 96(1) of the Charter of the United Nations.

TABLE III
[Note: the nuclear-weapon States under the NPT
are underlined; "R" denotes recorded vote]

Voting on the 1982-1995 Resolutions on
"Convention on the prohibition of the use
of nuclear weapons"

NUCLEAR DISARMAMENT IN THE PERIOD OF THE
COLD WAR AND THE ROAD TO THE CONCLUSION
OF THE NON-PROLIFERATION TREATY

(1) The Nuclear Arms Race and the Control of Nuclear Weapons in the Period
of the Cold War; the Emergence of the Non-Proliferation Treaty

(a) Development of Nuclear Disarmament

26. (Arms race between the United States and the Soviet Union) After the success
of the first nuclear weapons test by the Soviet Union in 1949 and the first test of
hydrogen bombs by the United States in 1952, and even with the participation of France,
the United Kingdom and later China in the group of States in possession of nuclear
weapons, these weapons remained a source of friction between the United States and the
Soviet Union in the post-war period known as the Cold War. However, in parallel to the
arms race between them, the United States and the Soviet Union, which were themselves
fully aware of the catastrophic effects of nuclear weapons once actually used, recognized
that some restraints would be needed.

In their search for the means of achieving restraints on the quantity of strategic
nuclear weapons or even the freezing of these weapons, the United States and the Soviet
Union made the Joint Statement of Agreed Principles for Disarmament Negotiations (UN Doc.
A/4879) in 1961. The plan included a gradual process of elimination and suspension of the
production of weapons of mass destruction - such as nuclear weapons - and marked the
beginning of the negotiation between the two countries of the Strategic Arms Limitation
Talks (SALT I) in 1969, which was ended by the conclusion of the 1972 Anti-Ballistic
Missile (ABM) Treaty, and was followed by SALT II in 1972. The Treaty on the Limitation of
Strategic Offensive Arms (SALT II Treaty) was concluded in 1979 but has never been
ratified. Negotiations within the framework of the Strategic Arms Reduction Talks (START)
commenced in 1982.

27. (Committee and later Conference on Disarmament (CD) in Geneva) With the
agreement of the United States and the Soviet Union and with the endorsement of the United
Nations under resolution 1722 (XVI) on "Question of disarmament", the
Eighteen-Nations Committee on Disarmament (ENDC) was set up in Geneva in 1961, composed of
an equal number of States in each "bloc" - that is, five on each side, together
with eight additional non-aligned countries - as a forum for global disarmament. The ENDC
became the Conference of the Committee on Disarmament (CCD) with the membership of
twenty-six States (which was increased to thirty-one in 1975) in 1969, and, pursuant to
the decision of the 1978 first special disarmament session of the United Nations General
Assembly (the conference being then composed of forty States, including all five
nuclear-weapon States), changed its name to the Committee on Disarmament. This has, since
1984, been in existence as the Conference on Disarmament (CD), an organ of disarmament
negotiations.

28. (Partial Test-Ban Treaty) In an international context that included the
Cuban missile crisis in October 1962 and with the agreement of the United States and the
Soviet Union, the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space
and Under Water (Partial Test-Ban Treaty (PTBT)), with the United States, the Soviet Union
and the United Kingdom as the original parties, was signed in Moscow on 5 August 1963. The
signatories agreed:

"to prohibit, to prevent, and not to carry out any nuclear weapon test explosion,
or any other nuclear explosion ... in the atmosphere; beyond its limits, including outer
space; or under water, including territorial waters or high seas" (Art.1) (UNTS,
Vol. 480, p. 43).

This treaty was to be of unlimited duration and was open for signature to all States.
Ninety-nine States have, as of 1 January 1995, ratified or acceded to it and five have
only signed it. The complete banning of all nuclear tests, including underground tests,
has still not been finally achieved at this writing, while negotiations on the
Comprehensive Nuclear-Test-Ban Treaty are at present in progress.

29. (The 1978 first special disarmament session of the United Nations) The
United Nations General Assembly has from the outset, and with the close collaboration of
the ENDC in Geneva, adopted, in parallel with bilateral negotiations between the United
States and the Soviet Union related to nuclear weapons, a number of resolutions concerning
nuclear weapons, one of which was the 1961 resolution 1653 (XVI) in 1961 concerning the
"Declaration on the prohibition of the use of nuclear weapons", to which I
referred in paragraph 16, above (see Table I). This 1961 resolution, which met some strong
opposition and reservations, has, however, for long been regarded as one of the leading
objectives to be achieved for nuclear disarmament and has led to the regular succession of
resolutions aiming at the Convention on the prohibition of the use of nuclear weapons
which, however, has not yet borne any fruit (see paras. 20-25, above).

Considering the issues of nuclear disarmament as a problem of global peace and
security, the first special session devoted to disarmament (Tenth Special Session) of the
General Assembly was held in May/June 1978 to lay the foundation of an international
disarmament strategy which would aim at a general and complete disarmament under effective
international control (cf. para. 17, above).

The Final Document of this special session set out various principles, including the
primary responsibility of nuclear-weapon States for nuclear disarmament, the observance of
an acceptable balance of mutual responsibilities and obligations for nuclear- and
non-nuclear-weapon States, the consideration of proposals designed to secure the avoidance
of the use of nuclear weapons and the prevention of nuclear wars, and the
non-proliferation of nuclear weapons.

A programme of action in that Final Document indicated that the ultimate goal should be
the complete elimination of nuclear weapons and for this purpose it encouraged, among
other things, the cessation of nuclear-weapon testing by all States within the framework
of an effective nuclear disarmament process, the giving of assurances to
non-nuclear-weapon States of their intent to refrain from any use or threat of use of
nuclear weapons, and the encouragement of the establishment of nuclear-weapon-free zones
on the basis of arrangements freely arrived at among the States of the regions concerned.

In response to this final document of the first special disarmament session, the
General Assembly has, since its 33rd Session in 1978, placed the "Review of the
implementation of the recommendations and decisions of the tenth special session" on
its agenda at every session down to the present day.

30. (The 1982 second special disarmament session of the General Assembly)
Although the General Assembly had noted that developments since 1978 had not lived up to
the hopes engendered by that special disarmament session, it held the second special
disarmament session (the Twelfth Special Session) in 1982 to review the implementation of
the recommendations and decisions adopted by the General Assembly at its previous
disarmament session in 1978 (cf., para. 20 above). The Concluding Document, that
is, the Report of the Ad hoc Committee, was adopted at this special disarmament
session (A/S-12/32).

Ever since the 37th Session (1982) held late in the same year, the General Assembly has
had on its agenda at every session down to the present day an item entitled "Review
and implementation of the Concluding Document of the Twelfth Special Session of the
General Assembly". Under this agenda item, the General Assembly adopted at its 37th
Session (1982) various resolutions concerning nuclear disarmament among which a resolution
entitled "Convention on the prohibition of the use of nuclear weapons" was to be
noted (as stated in paragraphs 21-22, above). The General Assembly repeated an almost
identical resolution from 1982, over a period of fourteen sessions, until 1995 (see para.
23, above). The number of sponsoring States did not increase, but opposition to the
resolution grew and abstentions from the voting became more numerous. In fact this
resolution had no impact on any occasion when it was passed, so that the General Assembly
had to repeat at every session its regret that no result had been achieved in the previous
year. There has never been any discussion of substance, either at the United Nations in
New York or at the Conference on Disarmament in Geneva, in relation to the Convention
prohibiting the use or threat of use of nuclear weapons under any circumstances.

(b) Separation Between Nuclear-Weapon States and Non-Nuclear-Weapon States

31. (The non-proliferation treaty) In the atmosphere of détente which was
brought about by the conclusion in 1963 of the Partial Test-Ban Treaty (PTBT), the United
States and the Soviet Union became concerned with the prevention of the proliferation of
nuclear weapons beyond those States which already possessed them. The United States and
the Soviet Union jointly submitted the draft of the Treaty on the Non-Proliferation of
Nuclear Weapons (Non-Proliferation Treaty (NPT)) in July 1968 in Geneva where, with the
participation of the non-nuclear weapon States, the multilateral negotiations had been
conducted. The Non-Proliferation Treaty, with the agreement of the United States, the
Soviet Union and the United Kingdom, was opened to all States for signature in three
cities: London, Moscow and Washington (UNTS, Vol. 729, p. 161). It became effective
on 5 March 1970 after its ratification by all three original member States and the deposit
of the instruments of ratification of forty other signatory States (China and France
ratified the Treaty only in 1992).

This Treaty clearly distinguished between, on the one hand, the nuclear-weapon
States, defined as those which prior to 1 January 1967 had manufactured and exploded a
nuclear weapon or other nuclear device, and which would undertake not to transfer nuclear
weapons to non-nuclear-weapon States or to assist, encourage or induce any of them to
manufacture or acquire nuclear weapons (Article I), and, on the other hand, the non-nuclear-weapon
States which would not receive the transfer of nuclear weapons or other nuclear
explosive devices and would not manufacture them or otherwise acquire them (Article II).
The Treaty imposed, however, on all the States Parties, whether nuclear-weapon States or
non-nuclear-weapon States, the obligation to pursue negotiations in good faith with a view
to the taking of effective measures relating to the cessation of the nuclear arms race and
to nuclear disarmament (Article VI). It is also to be noted that, at the First Special
Disarmament Session of the General Assembly in 1978, the five nuclear-weapon States gave
assurances to the non-nuclear-weapon States which were Parties to the Treaty, undertaking
not to use nuclear weapons against them.

The balance of power, as far as nuclear weapons are concerned, would be maintained
between the nuclear-weapon and the non-nuclear-weapon States by this seemingly unequal
treaty, which in fact reflected the reality of the international relations in the 1970s
and 1980s. Up to the end of 1979, 111 States had become Parties to the Treaty and at the
end of 1989, 138 States were Parties. To date, the Treaty has received 182 ratifications.

Twenty-five years after the entry into force of that Treaty, in 1995, a Conference was
to be convened to decide, by a majority of the Parties to it, whether the Treaty should
continue in force indefinitely or should be extended for an additional fixed period or
periods (Article X(2)).

32. (Nuclear Free Zone - Treaty of Tlatelolco) The Non-Proliferation Treaty
recognized the right to any group of States to conclude regional treaties in order to
assure the total absence of nuclear weapons in their respective territories (Article VII).

The Treaty for the Prohibition of Nuclear Weapons in Latin America (later the words
"and the Caribbean" were added) (the Treaty of Tlatelolco) was signed on 14
February 1967 by 14 Latin American States (with 7 additional States signing subsequently)
and became effective on 22 April 1968 (UNTS, Vol. 634, p. 281). This Treaty is
drawn up to be of a permanent nature and to remain in force indefinitely (Article 30), and
is currently valid among 30 States in the region.

The five nuclear-weapon States would be bound to compliance with this Treaty by their
acceptance of Additional Protocol II by which the nuclear-weapon States would
"undertake not to use or threaten to use nuclear weapons against the Contracting
Parties of the Treaty" (Article 3). The United Nations General Assembly in its
resolutions adopted in successive sessions (resolution 2286 (XXII); 2456 (XXIII); etc.)
welcomed this Treaty with special satisfaction and invited the five nuclear-weapon States
to sign and ratify this Additional Protocol, by which they would become bound by the
Treaty. In fact, the five nuclear-weapon States had successively signed and ratified
Additional Protocol II by the end of the 1970s but accompanied their actions by
declarations whereby some attached reservations.

33. (Treaty of Rarotonga) Following the Treaty of Tlatelolco covering the Latin
American region, the South Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga) was
signed by eight States at the South Pacific forum on 6 August 1985 (with the later
addition of one signature), to provide for the abandonment of instruments of nuclear
explosion, the prevention of their placement by nuclear-weapon States and the prevention
of testing (UNTS, Registration no. 24592 of 2 January 1987). This Treaty became
effective on 11 December 1986 and is of a permanent nature, remaining in force
indefinitely (Article 13) and currently valid among 12 States in the region.

Protocol 2, which was aimed at securing the agreement of the five nuclear-weapon States
"not to use or threaten to use" any nuclear explosive device against the Parties
to the Treaty (Article 1), had by 1988 been signed and ratified by China and the Soviet
Union, to which instrument they appended respectively some reservations. Signature by
France, the United Kingdom and the United States had to wait until March 1996.

(2) Perpetuation of the NPT Régime

(a) Non-Proliferation Treaty

34. (End of the Cold War) The collapse of régimes in eastern Europe, which
commenced with the destruction of the Berlin Wall in November 1989 and the dissolution of
the Soviet Union and which led to the end of the Cold War, had a very strong impact on the
question of nuclear weapons at the end of the 1980s and beginning of the 1990s.

35. (Expectation of the comprehensive test-ban treaty) Since the conclusion of
the Partial Test-Ban Treaty in 1963, the complete banning of all nuclear explosion tests
has been the most important political task - in Geneva in particular - and it became, with
the approach of 1995, a most essential matter for the nuclear-weapon States to achieve the
indefinite extension of the Non-Proliferation Treaty, thus perpetuating that treaty's
régime. When the Conference on the Review of the Non-Proliferation Treaty broke down in
1990 due to the conflict concerning the Comprehensive Nuclear-Test-Ban Treaty (CTBT), the
spotlight fell upon that latter Treaty. The nuclear-weapon States had become aware that,
if they were to succeed in bringing about the indefinite extension of the
Non-Proliferation Treaty, they would have to give up any planned tests of nuclear weapons.

In 1991 the "Comprehensive Nuclear-Test-Ban Treaty" was included for the
first time as a consolidated and independent agenda item of the General Assembly and a
proposal sponsored by 45 States was adopted on 6 December 1991 by 147 States in favour, 2
against and 4 abstentions, and became the resolution 46/29 entitled "Comprehensive
Nuclear-Test-Ban Treaty" (Table IV, 1). The United States and France were against,
and China and the United Kingdom abstained. This resolution required all States to do
their utmost to achieve the total prohibition of nuclear weapon tests and asked the
Conference on Disarmament to proceed with negotiations.

36. (Negotiations in Geneva) The real negotiations in Geneva started in 1992 and
late in that year the United Nations General Assembly adopted resolution 47/47 - which was
practically identical to the previous resolution - on 9 December 1992 by 159 votes in
favour, 1 against and 4 abstentions (Table IV, 2). It was noted that, although the United
States voted against, France, because of the modification to its national policy, no
longer voted against it but abstained. The United States had likewise changed its policy
with the start of President Clinton's term of office in January 1993 as well as in
consideration of the fact that it would soon be time for the extension of the
Non-Proliferation Treaty. Thus, the draft resolution on "Comprehensive
Nuclear-Test-Ban Treaty" in 1993 was sponsored by 157 States, including the United
States, and adopted without being put to the vote as resolution 48/70 (Table IV, 3).

In fact, through the CTBT negotiations at the Conference on Disarmament in Geneva in
1994 there began to be a real hope that the Treaty could be drafted. At the 49th Session
of the General Assembly in 1994, the resolution on the same subject, which was sponsored
for the first time by all five nuclear-weapon States, was adopted on 15 December 1994,
again without being put to the vote, as resolution 49/70. That resolution called upon the
participants in the Conference on Disarmament to negotiate intensively as a high priority
and to conclude a universal treaty for a comprehensive ban of nuclear tests, which would
contribute to nuclear disarmament and the prevention of the proliferation of nuclear
weapons in all their aspects (Table IV, 4).

It was stated that, in order to have an effective implementation of Article VI of the
Non-Proliferation Treaty, as referred to in paragraph 31 above, the completion by the
Conference on Disarmament of the negotiation on the CTBT was expected by no later than
1996. In 1995 the General Assembly at its 50th Session again adopted resolution 50/65 on
"Comprehensive Nuclear-Test-Ban Treaty" without its being put to the vote (Table
IV, 5) and the CTBT will, it is hoped, be concluded in 1996.

(b) Indefinite Extension of the Non-Proliferation Treaty

37. (Convocation of the conference) In spite of the fact that the 1968
Non-Proliferation Treaty has certainly been seen as unequal, the monopoly of nuclear
weapons by a limited number of States and the prevention of the proliferation of nuclear
weapons beyond those States has for some time been the linchpin of the doctrine of nuclear
deterrence. Under this Treaty, a conference would be convened in 1995 to decide whether
the treaty should continue in force indefinitely or should be extended for an additional
fixed period or periods (Article X(2)). The General Assembly at its 47th Session (1992)
adopted by a recorded vote of 168 votes in favour to none against with no abstentions
(India later advised the Assembly that it had intended to abstain) resolution 47/52A by
which it took note of the decision of the Parties to the Treaty to form the preparatory
committee for this 1995 Review and Extension Conference, which would meet in May 1993, and
requested the possible assistance of the Secretary-General. Pursuant to the decision of
the preparatory committee the Review and Extension Conference was held in April/May 1995
in New York.

38. (Security assurances given by the nuclear States) In order to perpetuate the
NPT régime, it was necessary for the nuclear-weapon States to give some assurances to the
non-nuclear-weapon States concerning the use of these weapons. Prior to the Conference in
April/May 1995, the five nuclear-weapons States proceeded early in April 1995 to make
their respective statements, in which they gave security assurances of their intent to
refrain from any use of nuclear weapons against the non-nuclear-weapon States that are
Parties to the Non-Proliferation Treaty. The Security Council in its resolution 984 (1995)
on 11 April 1995, which it adopted unanimously, "[took] note with appreciation of the
statements" made by the five nuclear-weapon States. The assurances given by the
nuclear-weapon States were more or less identical, stating that "[each State] will
not use nuclear weapons against non-nuclear-weapon States Parties to the NPT"
(S/1995/261, the Russian Federation; 262, the United Kingdom; 263, the United States; 264,
France) except that China gave the assurance that it would "not ... be the first to
use nuclear weapons at any time or under any circumstances" and that "[it]
undertakes not to use or threaten to use nuclear weapons against non-nuclear weapon States
or nuclear-weapon free zones at any time or under any circumstances" (S/1995/265). In
fact, a similar security assurance had also been given five years previously, in 1990.

39. (The indefinite extension of the NPT) One hundred and seventy-five member
States participated and ten non-member States sent observers. The Conference decided that,
"the Treaty [should] continue in force indefinitely" (Decision 3) as a majority
existed among States party to the Treaty for its indefinite extension, in accordance with
Article X, paragraph 2. The nuclear-weapon States, while looking forward as far as
possible to nuclear disarmament and the non-use of nuclear weapons, did not alter their
positions. On the other hand the non-nuclear-weapon States, while expressing their
appreciation of the efforts made by the nuclear-weapon States to promote nuclear
disarmament, were agreed that the nuclear-weapon States, given their privileged status,
would continue to remain the only States to hold nuclear weapons. That decision of the
Conference was noted by the General Assembly in its resolution 50/70Q on "1995 Review
and extension conference of the parties to the treaty on the non-proliferation of nuclear
weapons" on 12 December 1995 by a recorded vote of 161 in favour, none against with
the abstention of only India and Israel.

It can, then, be said that the NPT régime has thus been firmly established in the
international community.

40. (Nuclear free zone treaties) Following the Treaties of Tlatelolco and
Rarotonga, some further treaties have been concluded to expand the non-nuclear weapon
zones pursuant to Article VII of the Non-Proliferation Treaty.

In South-East Asia in December 1995 a Treaty of the Non-Nuclear Regions was signed in
Bangkok on the occasion of the Conference of the Heads of State of the Association of
South-East Asian Nations (ASEAN) by ten States in that area and this Treaty should remain
in force indefinitely. The Protocol was opened for signature to the five nuclear-weapon
States. It is reported that China and the United States declined to sign the Protocol for
the reason that the Treaty covered the exclusive economic zone and the continental shelf
in the region.

In Africa, where South Africa gave up its nuclear weapons, the establishment of a
nuclear free zone became a reality and the United Nations General Assembly at its 49th
Session (1994) adopted resolution 49/138 on "Establishment of an African
nuclear-weapon-free zone" requesting the Secretary-General to work in consultation
with the Organization of African Unity (OAU) on the text of a treaty on an African
Nuclear-Weapon-Free Zone. In June 1995, after the extension of the Non-Proliferation
Treaty was decided, the Conference of Heads of States of the OAU adopted the African
Nuclear-Weapon-Free Zone Treaty (the Treaty of Pelindaba) which was signed by 42 African
States on 11 April 1996 in Cairo. China, France, the United Kingdom and the United States
signed Protocol I at the same time by which they undertook not to use or threaten to use
nuclear weapons against the Parties to the Treaty. The Treaty is of unlimited duration and
should remain in force indefinitely.

41. (Conclusion) One can conclude from the above that, on the one hand, the NPT
régime which presupposes the possession of nuclear weapons by the five nuclear-weapon
States has been firmly established and that, on the other, they have themselves given
security assurances to the non-nuclear weapon States by certain statements they have made
in the Security Council. In addition, those nuclear-weapon States, in so far as they
adhere to the Protocols appended to the respective nuclear-free zone treaties, are bound
not to use or threaten to use nuclear weapons against States Parties to those respective
treaties.

This reality should not be overlooked. It is most unlikely that those nuclear-weapon
States will use those weapons, even among themselves, but the possibility of the use of
those weapons cannot be totally excluded in certain special circumstances. That is the
meaning of the Non-Proliferation Treaty. It is generally accepted that this NPT régime is
a necessary evil in the context of international security, where the doctrine of nuclear
deterrence continues to be meaningful and valid.

_________

TABLE IV
[Note: the nuclear-weapon States under the NPT
are underlined; "R" denotes recorded vote]

A/C.1/47/L.37: Sponsored by: (99) the Russian Federation (names of other
States not reproduced)

A/RES/47/47: adopted on 9 December 1992 by R159-1-4

For: (159) Russian Federation (names of other States not reproduced)

Against: (1) United States

Abstaining: (4) China, France, Israel, United Kingdom

3. The 48th Session (1993)

A/C.1/48/L.40: Sponsored by: (159) Russian Federation, United States (names
of other States not reproduced)

A/RES/48/70: adopted without a vote on 16 December 1993

4. The 49th Session (1994)

A/C.1/49/L.22/Rev. 1: Sponsored by: (87) China, France, Russian
Federation, United Kingdom, United States (names of other States not
reproduced)

A/RES/49/70 adopted without a vote on 15 December 1994

5. The 50th Session (1995)

A/C.1/50/L.8/Rev. 1: Sponsored by: (91) France, Russian Federation, United
Kingdom, United States (names of other States not reproduced)

A/RES/50/65: adopted without a vote on 12 December 1995

_________

(3) Significance of the NPT régime in the period of the still valid doctrine
of nuclear deterrence

42. (Ultimate goal of elimination of nuclear weapons) The resolution sponsored
and introduced by Japan and entitled "Nuclear disarmament with a view to the ultimate
elimination of nuclear weapons" was adopted on 15 December 1994 as resolution 49/75H
at the 49th Session (1994) by a recorded vote of 163 in favour, none against and 8
abstentions (Table V, 1). In that resolution, the General Assembly "urge[d] States
not parties to the Treaty on the Non-Proliferation of Nuclear Weapons to accede to it at
the earliest possible date" and "call[ed] upon the nuclear-weapon States to
pursue their efforts for nuclear disarmament with the ultimate objective of the
elimination of nuclear weapons in the framework of general and complete
disarmament" (emphasis added).

After it was determined in May 1995 that the NPT was to be indefinitely extended, the
General Assembly at its 50th Session (1995) adopted on 12 December 1995, by 154 votes in
favour, none against and 10 abstentions, resolution 50/70C by which the General Assembly
"[c]all[ed] for the determined pursuit by the nuclear-weapon States of systematic and
progressive efforts to reduce nuclear weapons globally, with the ultimate goal of
eliminating those weapons, and by all States of general and complete disarmament under
strict and effective international control" (emphasis added) (Table V, 2).

It is to be noted that another resolution similarly entitled "Nuclear
disarmament" which proposed "effective nuclear disarmament measures with a view
to the total elimination of [nuclear] weapons within a time-bound framework"
(emphasis added) was adopted on the same day as resolution 50/70P but met strong
opposition as reflected in a recorded vote of 103 in favour, 39 against and 17 absentions
(Table V, 3).

_________

TABLE V
[Note: the nuclear-weapon States under the NPT
are underlined; "R" denotes recorded vote]

General Assembly resolutions on
"Nuclear disarmament with a view to the
ultimate elimination of nuclear weapons"

(1) Re-examination of the General Assembly's Request for the Court's Advisory
Opinion

43. (Re-examination of the Request) I have shown, firstly, that the
Request contained in General Assembly resolution 49/75K and that reads: "Is the
threat or use of nuclear weapons permitted in any circumstance under international
law?" was, in fact, nothing more than a request to the Court to endorse what, in the
view of those that framed it, is a legal axiom that the threat or use of nuclear weapons
is not permitted under international law in any circumstance, and so cannot be
considered as a request for advisory opinion in the real sense as laid down by Article
96(1) of the Charter of the United Nations.

In the second place, I maintain that the Request contains an element of
uncertainty as regards the meaning of the phrase "threat or use of nuclear
weapons", as opposed to "the use or threat of use of nuclear weapons", and
provides no clarification of the concept of "threat", leading one to raise the
question of whether or not the possession or the production of nuclear weapons should be
included as an object of the Request. In my view there was sufficient reason to believe
that, in view of the background to the drafting, the absolute illegality of nuclear
weapons themselves was in the mind of some States.

Thirdly, as can be seen from the travaux preparatoires of the Request,
the adoption of that resolution was far from representing a consensus of the General
Assembly (cf., para. 6-14, above).

44. (Standstill of the movement towards an agreement on the convention prohibiting
the use of nuclear weapons) In the development of nuclear disarmament in the forum of
the United Nations, the movement aiming at the conclusion of a treaty to totally prohibit
the "use or threat of use of nuclear weapons" was at a standstill for more than
ten years, that is, from 1982 to 1994. Support for such repeated resolutions on
disarmament within the United Nations General Assembly in New York did not increase but
rather decreased (see Table III, above), and the Conference on Disarmament in Geneva made
no attempt to respond favourably to those resolutions nor did it commence negotiations in
order to achieve agreement on such a convention.

Against the background of that situation, a group of States stimulated by a few NGOs
attempted to achieve a breakthrough by obtaining the Court's endorsement of an alleged
legal axiom in order to move towards a worldwide anti-nuclear weapons convention. I have
no doubt that the Request was prepared and drafted - not in order to ascertain the status
of existing international law on the subject but to try to promote the total elimination
of nuclear weapons - that is to say, with highly political motives. This reason,
among others, explains why, in 1994, resolution 49/75K, although passed at the General
Assembly with the support of 78 States, did meet with 43 objections while 38 States
abstained from the voting.

45. (The reality of the NPT régime) The reality of international society is far
removed from the desires expressed by that group of States which supported resolution
49/75K. In the period of the Cold War, the monopoly of nuclear weapons by five States and
the prevention of proliferation beyond that restricted circle, were regarded as essential
and indispensable conditions for the maintenance of international peace and security, as
proved by the conclusion of the Non-Proliferation Treaty in 1968 which clearly
distinguished between the five nuclear-weapon States and the non-nuclear-weapon States.
The doctrine, or strategy, of nuclear deterrence, however it may be judged and criticized
from different angles and in different ways, was made a basis for the NPT régime which
has been legitimized by international law, both conventional and customary, during the
past few decades.

The situation has remained unchanged down to the present day, even in the post-Cold-War
period. The term of the 1968 Non-Proliferation Treaty was extended indefinitely in 1995.
In such an international climate in which nuclear disarmament is incomplete and general
and complete disarmament chimerical, a total prohibition of these weapons would have been
seen as a rejection of the legal basis on which that Treaty was founded. If the total
prohibition of nuclear weapons was the driving force behind the Request, then the question
put under resolution 49/75K could only have been raised in defiance of the then
legitimately existing NPT régime.

There is another point which should not be overlooked. As a matter of fact the
nuclear-weapon States have tended to undertake not to use or threaten to use nuclear
weapons against the States in some specific regions covered by the nuclear-free-zone
treaties and these five nuclear-weapon States, early in 1995, gave security assurances
through statements made in the Security Council in which they undertook not to use or
threaten to use these weapons against the non-nuclear-weapon States. In other words, if
legal undertakings are respected, there is little risk of the use of nuclear weapons at
present by the five declared nuclear-weapon States. Under such circumstances there was, in
1994, no imminent need to raise the question of the legality or illegality of nuclear
weapons.

46. (Caricature of the advisory procedure) In the climate in which the NPT
régime was about to be legitimized for an indefinite term, and at a time when there was
no probability of the use of nuclear weapons by the five nuclear-weapon States, the
General Assembly on the same day, 15 December 1994, was asked, under resolution 49/76E on
a "Convention on the prohibition of the use of nuclear weapons", to request the
Conference on Disarmament in Geneva to prepare such a convention (without much expectation
of success), and was also asked to adopt two other resolutions under the same agenda item
"General and complete disarmament" - one, resolution 49/75H, aimed at the ultimate
elimination of nuclear weapons and the other, resolution 49/75K, requesting from the
Court the endorsement of the illegality of nuclear weapons under contemporary
international law. This is highly contradictory. There was no need and no rational
justification, under the circumstances prevailing in 1994, for the request for advisory
opinion by the General Assembly to the Court concerning the legality or illegality of the
threat or use of nuclear weapons. This was simply, in my view, a caricature of the
advisory procedure.

(2) Role of the Advisory Function and the Discretion of the Court to
Decline to Render an Advisory Opinion

47. (Function of the advisory opinion) The International Court of Justice is
competent not only to function as a judicial organ but also to give advisory opinions.
However, the advisory function is a questionable function of any judicial tribunal and was
not exercised by any international tribunal prior to the Permanent Court of International
Justice, which first introduced it amidst uncertainty and controversy. The advisory
function has now been incorporated into the role of the International Court of Justice in
parallel with its contentious function, but continues to be regarded as an exception and
to be seen as an incidental function of the Court. This is the reason why, as distinct
from the exercise of its contentious jurisdiction, the Court has discretion in exercising
its advisory function, as stated in Article 65 of the Statute, which provides that
"the Court may give an advisory opinion ..." (emphasis added).

48. (One refusal to render an advisory opinion in the period of the Permanent Court)
The Permanent Court once declined to give an opinion but not because it exercised its
discretionary power in so doing. In the period of the Permanent Court, the advisory
function played a relatively important role in settling inter-State disputes (as in
contentious cases), and in cases involving an inter-State dispute, the consent of the
States in dispute was required for an advisory opinion to be rendered. The Eastern
Carelia case in 1923 was very important in this respect and was the only case in which
the Permanent Court declined to render an advisory opinion. In that case, which was
related to the interpretation of a declaration concerning the autonomous status of Eastern
Carelia in the 1920 Dorpat Peace Treaty between Finland and Russia, Finland first appealed
to the Council of the League of Nations to ask the Court for an advisory opinion. Russia,
which was not a member of the League of Nations, opposed that move. Further to proceedings
before the Court in which Russia was not represented, the Court, when declining to deliver
an advisory opinion, indicated its unwillingness to take the matter any further under the
circumstances and invoked a well-established principle of international law to the effect
that "no State can, without its consent, be compelled to submit its disputes with
other States either to mediation or to arbitration, or to any other kind of pacific
settlement" (P.C.I.J., Series B, No. 5, p. 27).

In all the advisory cases in the period of the Permanent Court which involved
inter-State disputes and which followed the Eastern Carelia case, the consent of
the State concerned was secured in advance or there was at least a guarantee that neither
party to the dispute would object to the proceedings. In the circumstances, the precedent
of the Eastern Carelia case as dealt with by the previous Court is of no relevance
to the present case.

49. (Advisory function in the International Court of Justice) Of the twenty
advisory opinions that the International Court of Justice has rendered to date, twelve
were given in response to requests made pursuant to General Assembly resolutions.

There have been seven cases, all in the early period of the Court, in which it dealt
simply with the interpretation of the United Nations Charter itself or with matters
concerning the functions of the United Nations, i.e., Conditions of Admission of a
State to Membership in the United Nations (Article 4 of Charter) (1948); Reparation
for Injuries Suffered in the Service of the United Nations (1949); Competence of
the General Assembly for the Admission of a State to the United Nations (1950); Effects
of Awards of Compensation Made by the United Nations Administrative Tribunal (1954); Voting
Procedure on Questions relating to Reports and Petitions concerning the Territory of South
West Africa (1955); Admissibility of Hearings of Petitioners by the Committee on
South West Africa (1956) and the case concerning Certain Expenses of the United
Nations (1962).

Unlike the previous Court, which dealt mostly with inter-State disputes even in the
context of advisory cases, the present Court has on only a few occasions been asked to
give an advisory opinion on a matter related to an inter-State dispute, i.e., in the cases
concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania
(1950) and the Western Sahara (1975). On some occasions the Court has dealt with
disputes between international organizations and States, such as the South West Africa
case (1950) and the Applicability of the Obligation to Arbitrate under Section 21 of
the United Nations Headquarters Agreement of 26 June 1947 case (1988).

50. (Legal questions of a general nature) In fact, during the life of the
present Court, there has only been one case in which a legal question of a general nature
was dealt with and that was the one concerning Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide (1951) in which the meaning of
reservations attached to a multilateral convention was questioned. In that case, however,
the request to the Court arose from circumstances of practical necessity, and it was asked
to focus upon the question of whether

"the reserving State [can] be regarded as being a party to the [Genocide]
Convention while still maintaining its reservation if the reservation is objected to by
one or more of the Parties of the Convention but not by others" (I.C.J. Reports
1951, p. 16)

and to render an opinion on the meaning of the reservation attached to a multilateral
convention and, more particularly, on the concrete question of the interpretation and
application of the Genocide Convention. This fact makes that case quite different from the
present case in which no issues of a practical nature are in dispute and there is no need
to specify the legality or illegality of the threat or use of nuclear weapons, as I
explained in paragraph 45, above.

51. (Declining to render an advisory opinion) If one looks at this practice, it
can be seen that no request for an advisory opinion concerning a legal question of a
general nature, where that question is unrelated either to a concrete dispute or to a
concrete problem awaiting a practical solution, has ever been submitted to the Court. It
is true that the present Court, even though given a discretionary power to render or to
decline to render an advisory opinion, has in the past had no occasion to decline to
render an opinion in response to a request from the General Assembly. The fact is however
that, in the past, the Court has never received any requests which could reasonably have
been refused in the given circumstances. In this connection it is irrelevant to argue, in
the present context, that "[t]he Court ... is mindful that it should not, in
principle, refuse to give an advisory opinion" and that "[t]here has been no
refusal, based on the discretionary power of the Court, to act upon a request for advisory
opinion in the history of the present Court" (Court's Opinion, para. 14).

(3) Conclusions

52. (Judicial propriety) Under the circumstances and considering the
discretionary competence of the Court in declining to render an advisory opinion, the
Court should, in my view, for the reason of judicial propriety, have dismissed the
Request raised under resolution 49/75K. Moreover, in the event, it seems to me that the
elementary or equivocal conclusions reached by the Court in the present Opinion do not
constitute a real response to the Request, and I am afraid that this unimpressive result
may cause some damage to the Court's credibility.

53. (Judicial economy) In addition, I would like to explain why I consider that
the Request should have been dismissed in the present case, on account of considerations
of judicial economy. There are any number of questions which could be brought to
the Court as requiring legal interpretation or the application of international law in
general terms in fields such as the law of the sea, law of humanitarian and human rights,
environmental law, etc. If the Court were to decide to render an opinion - as in the
present case - by giving a response to a legal question of a general nature as to whether
a specific action would or would not be in conformity with the application of treaty law
or of customary law - a question raised in the absence of any practical need - this could
in the long run mean that the Court could be seised of a number of hypothetical cases of a
general nature and would eventually risk its main function - to settle international
disputes on the basis of law - to become a consultative or even a legislative organ.

If the flood-gates were thus opened for any legal question of a general nature which
would not require immediate solution, in circumstances where there was no practical
dispute or need, then the Court could receive many cases of an academic or intellectual
nature with the consequence that it would be the less able to exercise its real function
as a judicial institution. I have expressed my concern at an abuse of the right to request
an advisory opinion in my separate opinion appended to the Court's Opinion rendered today
in response to the Request from the World Health Assembly, in terms which I would like to
repeat:

"I am personally very much afraid that if encouragement is given or invitations are
extended for a greater use of the advisory function of the Court - as has recently been
advocated on more than one occasion by some authorities - it may well be seised of more
requests for advisory opinions which may in essence be unnecessary and over-simplistic. I
firmly believe that the International Court of Justice should primarily function as a
judicial institution to provide solutions to inter-State disputes of a contentious nature
and should neither be expected to act as a legislature (although new developments in
international law may well be achieved through the jurisprudence of the Court) or to
function as an organ giving legal advice (except that the Court may give opinions on legal
questions which arise within the scope of activities of the authorized international
organizations) in circumstances in which there is no conflict or dispute concerning legal
questions between States or between States and international organizations."

54. (My personal appeal) In concluding this exposition of my position against
the Court's rendering an opinion in the present case, I would emphasize that I am among
the first to hope that nuclear weapons can be totally eliminated from the world as
proposed in General Assembly resolutions 49/75H and 50/70C, which were adopted at the
General Assembly without there being one single objection. However, a decision on this
matter is a function of political negotiations among States in Geneva or New York
and is not one which concerns our judicial institution here at The Hague, where an
interpretation of existing international law can only be given in response to a
genuine need.

V. SUPPLEMENTARY OBSERVATIONS ON MY POSITION AS
REGARDS PARAGRAPH 2 OF THE OPERATIVE PART
OF THE PRESENT ADVISORY OPINION

55. While I take the position that the Court should have declined to render an advisory
opinion, I proceeded nonetheless to cast my vote on all of the sub-paragraphs in its
operative part in view of the rule that no Judge may abstain from the voting on the
operative part of any decision of the Court. I have done so although, in my view, the
statements listed in paragraph 2 may not be interpreted as constituting replies to the
question posed by resolution 49/75K while sub-paragraph F, in particular, concerns a
matter which, in my view, should not be advanced in the operative part of the Advisory
Opinion as it simply reproduces Article VI of the Non-Proliferation Treaty. However, I did
vote in favour of all the sub-paragraphs A to F - apart from the sub-paragraph E - as I
can accept the statements made in each one of them. The equivocations of sub-paragraph E
prove my point that it would have been prudent for the Court to decline from the outset to
give any opinion at all in the present case. The fact that the Court could only come to
such an equivocal conclusion hardly serves to enhance its credibility.